Boehner's Game of Health Care Jenga

House Speaker-to-be John Boehner and President Obama held competing press conferences on Wednesday, and gave competing messages on what to do about Obama’s health-care law.

In his White House press conference, Obama defended the as-yet unimplemented law, rejecting the notion that the election was a repudiation of the bill. At the same time, he gave a heavily qualified statement laying out the conditions under which he would be willing to “tweak” the bill. According to Obama, “If the Republicans have ideas for how to improve our healthcare system, if they want to suggest modifications that would deliver faster, more effective reform . . . I am happy to consider some of those ideas.” This is the equivalent of apologizing by saying “I’m sorry if you were offended.” It allows Obama to reject any GOP suggestions by saying that he does not consider them to be “improvements” according to his definition.

Boehner, fresh off a historic victory, did not feel the need to make any such qualified concessions, saying, “we have to do everything we can to try to repeal this bill and replace it with common sense reforms to bring down the cost of health care.” So despite Obama’s friendly post-election phone call to Boehner, the two men hold contradictory positions that cannot coexist. Republicans, however, still lack a majority in the Senate, let alone a filibuster-proof majority, and Obama would veto repeal legislation, which means that repeal is simply not going to happen in the next session in Congress. Nevertheless, it is likely that some type of repeal legislation will pass the House early in the next year, but not the Senate. At this point, Republicans will be faced with three choices:

1. Drop the health-care issue after the symbolic but failed vote and try to repeal the bill again after the next presidential election.

2. Pursue piecemeal changes to the new law’s least popular provisions.

3. Engage in a guerrilla-warfare approach of defunding the implementation, holding hearings to force Obama administration personnel to defend their activities, and using the majority’s investigative tools to highlight the law’s controversial aspects.

From the GOP perspective, Option 1 — doing nothing after the failed repeal vote — is not a realistic option, since so many Republican members will have run on opposition to the new law. Option 2, if successful, puts the Republicans in the position of “fixing” a law that they strongly oppose. From the president’s perspective, he would clearly favor Option 1, but he left an opening in his press conference for Option 2, which is to tweak or fix some of the law’s most unpopular provisions, such as the 1099 reporting requirements that will saddle businesses with huge paperwork requirements. Obama even mentioned this particular provision in his press conference, conceding that the paperwork requirements are too “burdensome.”

This is dangerous territory for the Republicans. On the one hand, the only way to secure changes in the health-care law over the next two years is to work with Obama. But engaging in this effort is akin to a game of Jenga, in which Republicans could potentially remove a number of the unpopular building blocks of the new law, but need to be careful not to remove any provisions that would cause a collapse in the overall system. At the same time, Republicans in both the House and the Senate are wary of “tweaking” only the bill’s most unpopular pieces, which would take away their most pressing arguments for repealing the entire law should the GOP win the presidency in 2012.

Given this situation, expect Republicans to follow up the symbolic repeal vote with option 3, a series of hearings, investigations, and appropriations riders designed to slow the implementation of the health-care law. This would keep the law’s least popular parts in the news and perhaps prevent implementation of the law from going beyond the point of no return. This is likely to be the strategy for the first year of the new Congress, but there remains the possibility that Republicans could reassess this strategy and work on the “tweaks” if the American people don’t like the approach.